Opinion
B293755
02-27-2020
THE PEOPLE, Plaintiff and Respondent, v. ARTIN SIMONIAN, Defendant and Appellant.
Stephen Vasil, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael C. Keller and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. PA085410) APPEAL from a judgment of the Superior Court of Los Angeles County, Hilleri G. Merritt, Judge. Conditionally reversed and remanded with instructions. Stephen Vasil, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael C. Keller and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
This is appellant Artin Simonian's second appeal following his conviction for burglary and felony vandalism. In our prior, unpublished opinion, People v. Simonian (May 15, 2018, B280907) (nonpub. opn.), we found that sufficient evidence supported the jury's verdict, but concluded that the trial court applied an incorrect standard when it denied appellant's motion for a new trial. Therefore, we remanded the matter to allow the trial court to reconsider the motion for new trial under the proper standard. We also directed the trial court to correct several errors in the abstract of judgment.
On remand, the trial court denied appellant's renewed motion for a new trial. Appellant now contends that the court failed to resentence him following the denial of his motion, as it was required to do, and failed to correct the abstract of judgment. He also argues that the court improperly refused to rule on his request for mental health diversion under newly enacted Penal Code section 1001.36. Finally, he requests remand to allow the court to determine whether to exercise its discretion to strike his prior serious felony conviction enhancement under section 667, subdivision (a) (667(a)).
All further statutory references are to the Penal Code unless otherwise indicated.
We agree that appellant is entitled to a remand to allow the trial court to determine his eligibility for mental health diversion under section 1001.36. We therefore conditionally reverse appellant's conviction and sentence and remand for proceedings pursuant to that statute. If appellant successfully completes diversion, then the court shall dismiss the charges. However, if the court determines that appellant does not meet the criteria under section 1001.36, or if appellant fails to complete diversion, then his convictions shall be reinstated. In that instance, the court shall exercise its discretion whether to strike the enhancement under section 667(a). If the court elects to exercise this discretion, appellant shall be resentenced. If not, the court shall reinstate appellant's sentence. In addition, we again direct the trial court to correct the errors in the abstract of judgment, to the extent they remain relevant following remand.
FACTUAL AND PROCEDURAL HISTORY
I. Factual Background
The underlying facts are discussed in detail in our prior opinion. We summarize them here as relevant to the instant appeal.
Appellant was charged with first degree residential burglary (§ 459; count one) and felony vandalism causing over $400 in damages (§ 594, subd. (a); count two). It was further alleged that he had a prior serious felony conviction for first degree burglary (§ 667, subd. (a)(1)) that was also a strike under the Three Strikes law (§§ 667, subd. (d), 1170.12, subd. (b)).
In November 2016, appellant pled not guilty by reason of insanity and the court ordered a psychiatric evaluation. The court received evaluation reports from experts selected by both parties. In January 2017, appellant withdrew his insanity plea. The court indicated on the record, and appellant agreed, that he was withdrawing the insanity plea based on the results of both expert reports and the investigation conducted by appellant's attorney.
At trial, the prosecution presented evidence that on the afternoon of December 31, 2015, appellant broke into a house located on a cul-de-sac in Sun Valley. First, appellant rang the doorbell of the house across the street and told the resident that he was looking for his sister and that "she lives in a white house on top of a hill." Several neighbors reported that appellant was knocking on the doors of all the houses in the cul-de-sac and looking inside parked cars. A neighbor then saw appellant enter the gate of the victim's house, attempt to open the front door, then walk around the side of the house, continuing to look around and trying to open doors. Another neighbor saw appellant pacing from the front to the back of the house for several minutes. About five minutes later, neighbors heard the alarm from the victim's house go off and appellant returned to his car, which was parked in the middle of the street.
Several neighbors called the police and told appellant that he was in the wrong neighborhood and should leave. Appellant continued to insist that he was looking for his sister's house. After a few more minutes, appellant left the area.
Police officers responding to the calls discovered two shattered sliding glass doors at the back of the victim's house—an outer door leading into a sunroom, and an interior door glass door leading from the sunroom into the kitchen. Nothing was reported missing from the house.
A few hours later, police found appellant walking down the street back toward the victim's house, about 20 houses away. He told the police he was knocking on doors looking for a female.
At the police station, appellant admitted breaking the exterior door with a brick, entering the house, and breaking the interior door. He denied taking any property, stating that he walked around inside the residence, looking for his fiancée, but did not find her. He admitted that the house did not belong to him or his fiancée, and that he did not know to whom it belonged. He also stated that when he saw the search lights from the police helicopter while driving, he drove in a different direction.
The jury found appellant guilty on both counts. In a bifurcated court trial, the court found the prior conviction allegation to be true. The court sentenced appellant to an aggregate term of 13 years in state prison.
In his first appeal, appellant challenged his burglary conviction, arguing that the jury lacked sufficient evidence to find that he entered the residence with intent to commit theft. In our prior opinion, we concluded that sufficient evidence supported the jury verdict. However, we agreed with appellant that the trial court applied an incorrect standard in ruling on his motion for a new trial. We therefore reversed the court's order denying the new trial motion and remanded the matter to allow the court to consider it under the correct standard. We also ordered the trial court to issue a corrected abstract of judgment, if applicable following remand, reflecting 800 days of presentence custody credit (rather than 797) and the imposition and stay of a $300 parole revocation fine (rather than a probation revocation fine).
II. Proceedings Upon Remand
On June 27, 2018, before we issued the remittitur in the first appeal, section 1001.36 became effective. (People v. Frahs (2018) 27 Cal.App.5th 784, 789 review granted Dec. 27, 2018, S252220 (Frahs); see Stats. 2018, ch. 34, § 24.) That statute gives the trial court discretion to grant pretrial diversion to certain criminal defendants who suffer from qualifying mental disorders. (§ 1001.36, subd. (a).)
Upon remand, the court heard and denied appellant's renewed motion for a new trial on September 21, 2018. Appellant's counsel then stated that appellant "should be resentenced and we believe he's entitled to mental health diversion at this point." The court stated that resentencing was not necessary, "because he already was sentenced." As for the request for mental health diversion, the court continued, "[A]t this juncture, it's obviously premature for me to really even assess whether mental diversion is appropriate. . . . This is new territory. I am not quite sure what the procedure is." At appellant's counsel's request, the court continued the hearing to allow him to obtain appellant's records.
At the next hearing on September 28, 2018, appellant's counsel informed the court that the applicable statute on mental health diversion was "an assembly bill still." The court responded: "I'm not sure that once all the resources are in place that even applies to Mr. Simonian, but that's a question for a different date because right now there are no resources in place. Even if . . . I was to determine it was applicable and appropriate, I can't very well divert him to where there's no resources, and my understanding is perhaps it will be in place by January. I don't know." Appellant's counsel stated he had tried to find a placement for appellant to receive diversion services, but could not find any. The court proposed taking the matter "off calendar without prejudice. When the time comes whereupon in your research you find that Mr. Simonian is, in fact, even eligible, if you want to have him brought out to re-calendar, we can certainly do that, but at this juncture I don't think there's anything to talk about." Appellant's counsel agreed.
This statement was incorrect, as section 1001.36 became effective on June 27, 2018.
DISCUSSION
I. Request for Mental Health Diversion
Appellant contends the trial court abused its discretion by refusing to rule on his request for mental health diversion under section 1001.36. Respondent counters that the statute does not apply retroactively, that appellant forfeited his claim, and that, in any event appellant fails to demonstrate eligibility for diversion.
Appellant was sentenced in 2017. As noted above, section 1001.36 became effective on June 27, 2018, giving the trial court discretion to grant pretrial diversion to certain criminal defendants who suffer from qualifying mental disorders. (§ 1001.36, subd. (a).)
Whether section 1001.36 is retroactive is a question currently pending before the Supreme Court in Frahs, supra, 27 Cal.App.5th 784. The Courts of Appeal have reached different conclusions. (Compare id. at p. 791 [statute applies retroactively]; People v. Burns (2019) 38 Cal.App.5th 776, 785-788 [same], review granted Oct. 30, 2019, S257738, with People v. Torres (2019) 39 Cal.App.5th 849, 855-856 (Torres) [statute does not apply retroactively]; People v. Craine (2019) 35 Cal.App.5th 744, 754-760 [same], review granted Sept. 11, 2019, S256671.) Since our Supreme Court will soon resolve this issue, we will keep our discussion brief.
In Frahs, the court found that section 1001.36 was subject to the Estrada rule, under which the presumption against retroactivity does not apply when the Legislature reduces the punishment for criminal conduct. (Frahs, supra, 27 Cal.App.5th at pp. 790-791.) The Frahs court found support in People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara), which considered the retroactivity of Proposition 57. In Lara, the Supreme Court held that although Proposition 57 did not mitigate punishment for any particular crime—it merely prohibited prosecutors from directly filing charges against juveniles in criminal court—it constituted an ameliorative change to the criminal law that the Legislature intended to extend as broadly as possible. (Lara, supra, 4 Cal.5th at p. 309.) The Frahs court reasoned that section 1001.36 was analogous to Proposition 57 in that it "is unquestionably an 'ameliorating benefit' to have the opportunity for diversion—and ultimately a possible dismissal." (Frahs, supra, 27 Cal.App.5th at p. 791.) The Frahs court also observed that the Legislature indicated an intent for section 1001.36 to apply broadly in section 1001.35, which states that the purpose of the pretrial diversion program is to promote "[i]ncreased diversion of individuals with mental disorders to mitigate the individuals' entry and reentry into the criminal justice system while protecting public safety." (§ 1001.35, subd. (a).) Thus, a defendant could request pretrial diversion even though, as here, he had already proceeded through trial.
In re Estrada (1965) 63 Cal.2d 740 (Estrada).
We agree with the analysis in Frahs and conclude section 1001.36 applies retroactively to defendants whose cases are not yet final. This includes appellant here.
We reject respondent's contention that appellant forfeited this claim on appeal. The court took appellant's motion off calendar in September 2018, suggesting that the request was premature, that adequate services would likely be in place starting in January 2019, and that appellant could refile his motion if appropriate. Respondent's suggestion that appellant was required to refile his motion to preserve the claim on appeal ignores the fact that appellant had only 60 days to appeal from the denial of his new trial motion and once he did so, the trial court was divested of jurisdiction. (Cal. Rules of Court, rule 8.308(a); People v. Bilbrey (2018) 25 Cal.App.5th 764, 771.)
Respondent also contends that appellant must establish his eligibility for diversion under section 1001.36 to warrant remand. We find no support for this contention in the statute, which expressly sets forth the defendant's burden to meet the statutory criteria as part of the eligibility proceedings in the trial court. (§ 1001.36, subds. (b)(1), (3).) Indeed, it is unclear how appellant could have established eligibility when the trial court cut off his motion as premature and misunderstood the scope of its discretion. To the contrary, we conclude that remand for an exercise of the court's discretion under section 1001.36 is appropriate if there is an affirmative indication in the record that the trial court may find a qualifying disorder, unless the record otherwise affirmatively indicates that remand would be futile. (See Frahs, supra, 27 Cal.App.5th at p. 791, [remand appropriate when "the record affirmatively discloses that [defendant] appears to meet at least one of the threshold requirements (a diagnosed mental disorder)"]; Torres, supra, 39 Cal.App.5th at p. 856 [remand futile where appellant denied mental illness]; People v. Jefferson (2019) 38 Cal.App.5th 399, 409 [remand futile where "trial court clearly indicated defendant's alleged mental health disorder was not a significant factor in his commission of the charged offenses, making him ineligible for diversion"].)
Remand is appropriate here. There is no indication from the trial court that it would have concluded appellant was not eligible; at most, the court stated it was unsure whether appellant could qualify. Further, the testimony regarding appellant's erratic behavior the day of the offense, and his diagnosis of substance use disorders by mental health professionals supports his potential eligibility for diversion. Finally, appellant's pursuit on appeal of an opportunity to participate in diversion (knowing it would require compliance with treatment) indicates he may be able to satisfy the remaining eligibility requirements, which concern appellant's willingness to participate in diversion and to comply with treatment. (§ 1001.36, subds. (b)(1)(D), (E).)
Accordingly, we conditionally reverse the judgment to allow the trial court to determine whether appellant is eligible for diversion under section 1001.36. If appellant successfully completes diversion, then the court shall dismiss the charges. (§ 1001.36, subd. (e).) If the court does not grant diversion, or if the court grants diversion but later determines "the criminal proceedings should be reinstated" (§ 1001.36, subd. (d)), the court shall reinstate appellant's conviction and conduct further sentencing proceedings in accordance with our directions in the next section.
II. Resentencing
Appellant also contends the trial court failed to follow this court's directions on remand in two respects: (1) by refusing to resentence him upon denial of his motion for new trial; and (2) by failing to correct the abstract of judgment in the manner outlined in our prior opinion. We address these contentions in the event appellant does not qualify for, or successfully complete, diversion pursuant to section 1001.36.
We previously reversed and remanded the matter to allow the trial court to reconsider appellant's motion for new trial under the appropriate standard and ordered the trial court to correct the abstract of judgment. Although we did not expressly direct the trial court to do so, upon denial of the new trial motion, it was within the scope of our directions on limited remand for the trial court to reinstate the judgment without resentencing appellant. (See People v. McGee (2002) 104 Cal.App.4th 559, 571-574, disapproved on another ground by People v. Avila (2006) 38 Cal.4th 491.) We are not persuaded by appellant's contention that the trial court was required to resentence him at that time.
On the other hand, it appears that the trial court did not correct errors in the abstract of judgment, as we directed. Specifically, appellant was entitled to 800 days of presentence custody credit, instead of 797, and the court imposed and stayed a $300 parole revocation fine, rather than a probation revocation fine. To the extent relevant upon remand, we again direct the trial court to make these corrections.
Appellant also requests that we remand the matter so the trial court can determine whether to exercise its discretion to strike his prior serious felony conviction enhancement (§ 667(a)). At sentencing, the court imposed a consecutive five-year term under section 667(a) for appellant's prior serious felony conviction. At the time, the trial court was required to impose this term under section 667(a). On September 30, 2018, the Governor signed Senate Bill No. 1393 (2017-2018 Reg. Sess.) (S.B. 1393), amending sections 667(a) and 1385 to provide the trial court with discretion to strike enhancements for serious felony convictions. The legislative changes became effective January 1, 2019. S.B. 1393 applies to all cases not yet final as of the statute's effective date. (See People v. Garcia (2018) 28 Cal.App.5th 961, 972.) The amendment therefore applies to this case.
Appellant contends remand is required to allow the trial court to exercise its discretion whether to impose or strike the section 667(a) enhancement. The Attorney General agrees that remand is appropriate, as do we. Absent a clear indication by the trial court as to how it would have exercised its discretion, an appellate court generally must remand for the trial court to hold a hearing to exercise its newly granted discretion. (People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896; People v. McDaniels (2018) 22 Cal.App.5th 420, 427-428; People v. Rocha (2019) 32 Cal.App.5th 352, 360-361.) Thus, in the event criminal proceedings are reinstated, the trial court shall exercise its discretion whether to strike the enhancement.
DISPOSITION
The judgment is conditionally reversed. The case is remanded to the trial court with instructions to determine whether appellant is eligible for diversion under section 1001.36 and, if so, to exercise its discretion within the procedures set forth in the statute. If the court does not grant diversion, or if the court grants diversion but later determines that the criminal proceedings should be reinstated, the court shall reinstate appellant's conviction and exercise its discretion whether to strike the enhancement under section 667(a). If the court elects to exercise this discretion, appellant shall be resentenced. The trial court shall correct the abstract of judgment as necessary upon remand. We also order the clerk of the superior court to forward a certified copy of any corrected abstract of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J. We concur: MANELLA, P. J. WILLHITE, J.